How can I pursue EB-5 with a commercial real estate investment and satisfy job creation without violating H-1B status?

Your questions have involved answers. You need a consultation appointment with an immigration attorney who is experienced with EB-5 matters.

The Private project does not need to be owned by you. If it is, you cannot work in it until you get your EAD through the I-485 if eligible to file concurrently with the I-526.

You can invest in commercial enterprises in the U.S., own an equity stake and have routine rights pursuant to the company agreement (voting, policy making, etc). You cannot be an active employee/draw salary, however, you can receive profits from your investment. I recommend speaking to an immigration attorney with experience in direct EB-5 filings.

EB-5 investment cannot be purely passive. While it could be a policy setting position, such as a board of directors and not day-to-day operations, you should get consent from the current H-1B employer that this extra-curricular activity is okay. Another way to be perfectly safe is to file another LCA and a change of employer petition with this new company for a part-time, remote position. Discuss things with your lawyer carefully before you make any changes.

An individual in H-1B status (or without any legal U.S. immigration status) is allowed to own an interest in a U.S. business, but they are not allowed to actively engage in the day-to-day management or operations of the business as that would be considered unauthorized employment. If you are from an E treaty country, an option may be to convert to an E visa based on your investment in the business to allow you to be employed and manage the business operations. But that would require changing from your current H-1B status and leaving your H-1B job position. In the alternative, the option that many others in your situation generally choose is to invest in an EB-5 regional center project. While you are still required to be "actively involved" in the operations of the new commercial enterprise (NCE), the NCE is generally separate from the job creating enterprise (JCE), with the accepted active involvement by the EB-5 investor amounting to participation in the policy decisions for the limited partnership or LLC that pools investment funds from multiple EB-5 investors and then either loans or invests the funds in the JCE. This is permitted under your current H-1B visa status as you would not be involved in managing or working for the JCE, and the active involvement with the NCE is not considered unauthorized employment. The operations of the JCE are overseen by individuals identified by the regional center. You do need to research the various regional centers and the projects available to make an informed and careful decision about where to invest. It is also important to understand that while the regional centers are certified/designated by USCIS, and in some cases, the projects have also already been approved, this does not mean that the financial or investment strengths of the underlying projects have been vetted or approved by USCIS. Due diligence on an EB-5 project should be approached in the same way and with the same care that you would approach any major financial investment.

On an H-1B you can only work for your H-1B employer. This does NOT mean you cannot own part or all of a business that you do not actively work for. H-1B does not preclude investment or passive ownership of other businesses. It just prohibits employment by anything other than the H-1B employer. However, you are right to be concerned. It can be a fine line between being a passive owner and providing skilled or unskilled labor, and you should navigate this with an experienced immigration attorney to minimize the risk of violating your H-1B status. You should also consult with an experienced EB-5 attorney because what you describe sounds like a business that might work as a regional center investment but might not work as a direct investment. There are many nuances involved, and you want to make sure the business is structured in a way that complies with the EB-5 program requirements.

You can own a business unrelated to your H-1B status but you cannot work there. Your work authorization is limited to your H-1B job. So form a company for the EB-5 purposes and hire people to run it; do not get involved with day-to-day operations but make sure you are engaged in policy formulation through voting.